Bowman v Police - [2015] NZHC 2556

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2015-425-30 [2015] NZHC 2556

BETWEEN
DAVID THOMAS KERRY BOWMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 19 October 2015

Appearances:

J Ross for Appellant
M McClenaghan for Respondent

Judgment:

19 October 2015

(ORAL) JUDGMENT OF LANG J [on appeal against sentence]

BOWMAN v NEW ZEALAND POLICE [2015] NZHC 2556 [19 October 2015]

[1] Mr Bowman pleaded guilty in the District Court to a large number of charges, including a charge of engaging in threatening behaviour towards his former partner. On 30 June 2015, Judge Cook sentenced Mr Bowman to eight months three weeks imprisonment in respect of all charges. She also issued a protection order against Mr Bowman under s 123B of the Sentencing Act 2002 (the Act) in relation to the charge
of engaging in threatening behaviour towards his former partner.1 Mr Bowman

appeals to this Court against that aspect of the Judge’s sentence.

The facts

[2] Mr Bowman pleaded guilty to the charge of threatening behaviour on the basis of a summary of facts with which he evidently took no dispute. This recorded that on the morning of 17 December 2014, Mr Bowman went to his former partner’s address after having been drinking all night. When he arrived at the address, he found that his former partner was not home. He then got into her bed. When his former partner returned home, she ordered him off her property. A heated incident then occurred both inside and outside the property. The summary records that at one point during this exchange, Mr Bowman’s former partner threw some stones at Mr Bowman.

[3] Fortunately, a passing police patrol observed what was going on. The police officers saw Mr Bowman walking away from the address. He was then seen to turn around, clench his right fist, raise it in the air and run towards his former partner in a threatening manner. When he saw the police, however, he left the area.

[4] When the police subsequently spoke to him, Mr Bowman acknowledged he had gone to the address uninvited. He said that he and his former partner still saw each other, although they were not living together. He said he had raised his fist after his former partner threatened to stop him having access to his child. He maintained that he did not intend to assault his former partner, and that he merely
sought to threaten her. He said he had gone to the address to intimidate her.

1 Police v Bowman [2015] NZDC 12342.

The appeal

[5] The jurisdiction to make a protection order under s 123B of the Act arises where the Court is satisfied of two matters. The first is that the making of the order is necessary for the protection of the victim of the offence.2 The second is that the victim of the offence does not object to the making of the order.3

[6] During the hearing in the District Court, the prosecution apparently advised the Judge that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bowman v Police

Details

AGLC: Bowman v Police [2015] NZHC 2556
Case: [2015] NZHC 2556
Decision Date: 19 October 2015

CaseChat Overview and Summary

The High Court of New Zealand, Invercargill Registry, heard an appeal from David Thomas Kerry Bowman against the sentencing decision of the District Court. Bowman had pleaded guilty to numerous charges, including engaging in threatening behaviour towards his former partner. The District Court sentenced Bowman to eight months and three weeks' imprisonment and issued a protection order under Section 123B of the Sentencing Act 2002 against Bowman in relation to the charge of engaging in threatening behaviour towards his former partner. Bowman appealed against the aspect of the sentence that involved the protection order. The court was required to determine whether the District Court was correct in issuing the protection order under Section 123B of the Act, considering the necessity for the protection of the victim and the victim's consent to the order. The court considered Bowman's past history of convictions, which included several instances of threatening and violent behaviour towards women and children, possession of offensive weapons, drug-related offences, and breaches of court orders. The court also examined the circumstances of the present offence, where Bowman had gone to his former partner's address uninvited, threatened and intimidated her, and displayed a propensity for violent behaviour. The court concluded that the protection order was necessary for the protection of Bowman's former partner and her child, given Bowman's history of violent and threatening behaviour. The appeal was dismissed, and the protection order remained in place.

Orders